State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0258

State of Minnesota,
Respondent,

vs.

Dustin Mitch Nickaboine,
Appellant.

Filed February 22, 2021
Affirmed
Hooten, Judge

Mille Lacs County District Court
File No. 48-CR-19-207

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Joe Walsh, Mille Lacs County Attorney, Milaca, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, L eah C. Graf, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Frisch , Presiding Judge; Hooten , Judge; and Smith,
Tracy M., Judge.
NONPRECEDENTIAL OPINION
HOOTEN, Judge
In this direct appeal from his conviction for gross misdemeanor escape from
custody, appellant argues that he must be permitted to withdraw his guilty plea because the

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factual basis for the plea was inaccurate and the record does not support that he was in
lawful custody at the time of the offense. We affirm.
FACTS
Appellant Dustin Mitch Nickaboine was charged with gross misdemeanor escape
from custody under Minn. Stat. § 609.485, subd. 2 (2018), for an incident that occurred in
January 2019. The charge stemmed from Nickaboine’s failure to return to jail after a nine-
hour furlough. Nickaboine pleaded guilty to gross misdemeanor escape. There was no
plea agreement between the parties as to sentencing.
During the plea hearing, the prosecutor asked Nickabo ine the following questions
to establish the factual basis for the offense:
Q: Mr. Nickaboine, back on January 24th, 2019, you were
released from the Mille Lacs County Jail in Mille Lacs County,
Minnesota, on a 9-hour furlough; is that correct?

A: Yes.

Q: And you were to return to the Mille Lacs County Jail after—
nine hours after being released on that same day; is that
correct?

A: I didn’t return. No.

Q: And, in fact, you were arrested several days later; is that
true?

A: Yes.

Q: And at the time you were in custody in the Mille Lacs
County Jail and released on that furlough, you were sitting a
sentence on a gross misdemeanor 911 interference; is that
correct?

A: Yes.

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Q: And also a gross misdemeanor DANCO violation?

A: I don’t think so. I don’t—no.

Q: Well, you were under sentence on three files; you
understand that?

A: What’s that?

Q: You were under sentences on three files. You had three
sentences to serve?

A: Yes.

Q: Okay. Two of them were gross misdemeanors?

A: Yes.

Q: To your knowledge? And one was a misdemeanor?

A: Something like that. Yes.
Following this exchange, the district court accepted Nickaboine’s plea, and the
parties submitted briefs on whether Nickaboine’s escape sentence should be imposed
consecutively to some or all of the following three sentences he had previously received in
other matters for offenses occurring in 2018 : (1) a 365 -day sentence f or a gross
misdemeanor domestic-abuse no-contact order (DANCO) violation, (2) a 365-day sentence
for gross misdemeanor interference with a 911 call, and (3) a 90 -day sentence for
misdemeanor fleeing on foot. All three of these sentences had been imposed consecutively
pursuant to a plea agreement.
At sentencing, Nickaboine argued that the sentence f or gross misdemeanor escape
should be imposed consecutively only to his sentence for the DANCO violation, as he had
served 207 of the 243 days needed to satisfy his sentence for the DANCO violation, but

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had not yet started serving the sentences for interference with a 911 call or fleeing on foot.
The state argued that Nickaboine’s sentence should be imposed consecutively to his
sentences for the DANCO violation and interference with a 911 call but not to his sentence
for fleeing on foot.
The district court found that Nickaboine was in custody on all three previous files
at the time of the escape offense. The district court then imposed an executed 365 -day
sentence to be served consecutively to Nickaboine’s sentences for the DANCO violation
and interference with a 911 call, but concurrently with his sentence for fleeing on foot.
Nickaboine appeals.
DECISION
Nickaboine argues that the district court must allow him to withdraw his guilty plea
to correct a manifest injustice because the plea was invalid due to its inaccuracy.
Nickaboine argues that there is an insufficient factual basis supporting his guilty pl ea to
gross misdemeanor escape because he did not admit, and the record does not otherwise
reflect, that he was in lawful custody at the time of the offense.
“A defendant has no absolute right to withdraw a guilty plea after entering it.” State
v. Raleigh, 778 N.W.2d 90, 93 (Minn. 2010). But a court “must allow” a defendant to
withdraw a plea at any time if it is proved to the satisfaction of the court that withdrawal is
necessary to correct a “manifest injustice.” Minn. R. Crim. P. 15.05, subd. 1. A ma nifest
injustice results from an invalid guilty plea. Raleigh, 778 N.W.2d at 94. To be
constitutionally valid, a guilty plea must be voluntary, intelligent, and accurate. Id. at 94.
“To be accurate, a plea must be established on a proper factual basis.” Id. Whether a plea

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is valid is a question of law that we review de novo. Id. It is the defendant’s burden to
show that a plea is invalid. Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998).
A proper factual basis is established when “the record contains a showing that there
is credible evidence available which would support a jury verdict that [the] defendant is
guilty of at least as great a crime as that to which he pled guilty.” Lussier v. State , 821
N.W.2d 581, 588 –89 (Minn. 2012). Establishing a proper factual basis is “typically”
accomplished “by asking the defendant to express in his own words what happened.”
Raleigh, 778 N.W.2d at 94. Even when a proper factual basis is not established by eliciting
proper responses from a defendant through q uestioning, “a defendant may not withdraw
his plea if the record contains sufficient evidence to support the conviction.” Lussier, 821
N.W.2d at 589 (quotation omitted). In reviewing the record, a court may consider the facts
alleged in a criminal complaint. See State v. Trott, 338 N.W.2d 248, 252 (Minn. 1983).
Under Minn. Stat. § 609.485, subds. 1, 2 (2018), a defendant commits escape from
custody if he “escapes while . . . in lawful custody on a charge or conviction of a crime.”
(emphasis added). Based on the plain language of this statute, for an escape to occur, it is
not enough that a defendant be in custody; the custody must also be lawful.
An adequate factual basis is established only when the record shows “that the
defendant’s conduct meets al l elements of the charge to which he is pleading guilty.”
Barnslater v. State, 805 N.W.2d 910, 914 (Minn. App. 2011). The parties do not dispute
the sufficiency of the facts establishing that Nickaboine was in custody following the
conviction of a crime at the time of his escape. At the plea hearing, Nickaboine admitted
that he was serving a sentence for gross misdemeanor interference with a 911 call and that

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he was “under sentence” on three matters at the time of his escape. However, the parties
dispute whether the facts from the plea hearing and the record sufficiently establish that
Nickaboine was in lawful custody.
Nickaboine argues that a factual basis for his plea was not established at the plea
hearing because he never admitted that he was in lawful custody during his colloquy with
the prosecutor and the evidence in the record does not establish a factual basis for his plea.
Nickaboine contends that the complaint in this case contains no factual allegations
regarding the lawfulness of the custody, indicating only that Nickaboine was “in custody
in the Mille Lacs County jail ” and failed to return. He asserts that the remainder of the
record actually demonstrates that his custody was unlawful because his sentence violated
Minn. Stat. § 609.15, subd. 2 (2018), which provides that “[i]f the court specifies that the
sentence shall run consecutively” and “[i]f the sentences are for a gross misdemeanor and
one or more misdemeanors, the total of the sentences shall not exceed two years.”
Nickaboine points out that the total length of his previously-imposed consecutive sentences
for two gross misdemeanors and one misdemeanor was two years and 90 days, arguing that
this length exceeds the two-year maximum set forth in Minn. Stat. § 609.15, subd. 2.
The state counters that Nickaboine voluntarily provided a sufficient factual basis for
his plea when he “admitted he was serving three consecutive sentences at the time the
escape offense occurred.” The state also contends that, even if we determine that
Nickaboine’s admissions at the plea hearing were insufficient to establish an adequate
factual basis for his plea, the record as a whole establishes that he was in lawful custody at
the time of his escape offense. To support this argument, the state cites the following

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evidence in the record from the plea hearing: (1) Nickaboine’s lack of c oncern regarding
the lawfulness of his three previously -imposed sentences and whether he was in lawful
custody at the time of the escape offense, (2) Nickaboine’s admission that he had three
sentences to serve when he did not return from furlough, and (3) Nickaboine’s statement
that he did not have anything else he wanted to discuss with his attorney prior to pleading
guilty to the escape offense. The state also cites the following discussion of Minn. Stat.
§ 609.15, subd. 2, at sentencing:
THE COURT: If the sentences are for a gross misdemeanor
and one or more misdemeanors the total of the sentences shall
not exceed two years.

So I emphasized the word “a” when I just read that, because
you could see the sense, you know, of the legislature that if it’s
one gross misdemeanor and a whole bunch of misdemeanors,
we don’t want to create a gigantic prison-looking sentence out
of a pile of misdemeanors. That makes sense. But if it’s for
more than one gross misdemeanor, that changes the equation.

DEFENSE COUNSEL: I don’t necessarily disagree with what
the [c]ourt’s saying, but the other part in that part of the law
also says that if they’re all gross misdemeanors the total of the
sentences shall not exceed four years.

So if the [c]ourt is intending to make this c onsecutive to all
three of his previously ordered sentences, I think there is a cap
of at least four years, somewhere between two and four years.

THE COURT: Agreed. I agree.

The state contends that the district court correctly interpreted the statute as establishing a
four-year—not a two -year—maximum sentence when multiple gross misdemeanor
sentences are involved.

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Although Nickaboine agreed that he was in custody on three files at the time of his
escape offense, he never expressly admitted that he was in lawful custody. However, he
did admit that he was “sitting a sentence on a gross misdemeanor 911 interference,” one of
three sentences that he was in jail to serve. A summary of Nickaboine’s criminal offenses,
which is included in the record, indicate s that Nickaboine was convicted of all three
offenses leading to the sentences that he was in jail to serve, and the parties do not dispute
those convictions. They only dispute the lawfulness of the total length of Nickaboine’s
consecutive sentences for a gross misdemeanor DANCO violation, a gross misdemeanor
interference with a 911 call, and a misdemeanor fleeing on foot.
Resolving the parties’ dispute on this sentencing length issue requires us to interpret
Minn. Stat. § 609.15, subd. 2. We review quest ions of statutory interpretation de novo.
State v. Townsend , 941 N.W.2d 108, 110 (Minn. 2020). The first step in statutory
interpretation is to determine whether the statute’s language, on its face, is unambiguous.
State v. Jama , 923 N.W.2d 632, 636 (Min n. 2019). When the language of a statute is
susceptible to only one reasonable interpretation, it is unambiguous, and we must apply its
plain meaning. State v. Culver, 941 N.W.2d 134, 139 (Minn. 2020).
Minn. Stat. § 609.15, subd. 2, places the following limits on sentences for
misdemeanors and gross misdemeanors:
If the court specifies that the sentence shall run consecutively
and all of the sentences are for misdemeanors, the total of the
sentences shall not exceed one year. If the sentences are for a
gross misdemeanor and one or more misdemeanors, the total
of the sentences shall not exceed two years. If all of the
sentences are for gross misdemeanors, the total of the
sentences shall not exceed four years.

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The plain language of this statute is unambiguous. If a court imposes consecutive sentences
for a singular gross misdemeanor and one or more misdemeanors, then the length of the
combined sentences shall not exceed two years. If a court imposes consecutiv e sentences
for multiple gross misdemeanors, then the length of the combined sentences shall not
exceed four years. Here, the district court had previously imposed consecutive sentences
for two gross misdemeanors and one misdemeanor , which does not trigge r the two -year
limit for a singular gross misdemeanor and one or more misdemeanors . Therefore, the
district court did not violate Minn. Stat. § 609.15, subd. 2 , by imposing consecutive
sentences totaling two years and 90 days for Nickaboine’s t wo gross misdemeanors and
one misdemeanor, and we are unable to find any evidence in the record establishing that
Nickaboine was in unlawful custody at the time of his escape offense1
Nickaboine has failed to demonstrate an improper factual basis for his guilty plea,
without which he may not withdraw the plea. See Minn. R. Crim. P. 15.05, subd. 1;
Raleigh, 778 N.W.2d at 93–94. There is evidence in the record—in particular the summary
of Nickaboine’s criminal offenses indicating his convictions for gross misdemeanor
DANCO violation and gross misdemeanor interference with a 911 call —that would
support a verdict of Nickaboine’s guilt for gross misdemeanor escape from custody , and
he has not met his burden in showing otherwise. See Lussier, 821 N.W.2d at 588–89.
Affirmed.

1 Even if Nickaboine’s consecutive sentences did trigger the two -year limit under Minn.
Stat. § 609.15, subd. 2 —which they do not—Nickaboine still would have been in lawful
custody at the time of his escape offense because he had not yet served the entire two-year
portion of his sentences to which he does not object.